Yazoo & Mississippi Valley Railroad v. Christmas, 42 So. 169

Yazoo & Mississippi Valley Railroad v. Christmas

42 So. 169 | Miss. | 1906

Mayes, J.,

delivered the opinion of the court.

The record in this case shows that Christmas delivered to the railroad company at Mound Bayou, Miss., a certain lot of gin machinery, which was to be shipped to Delta Point, La. The machinery was delivered to the company about the 18th day of *696August, 1904, and the agent at Mound Bayou, in mailing out the bill of lading, inadvertently wrote in the bill, as the destination of the machinery, Delhi, La., instead of Delta Point, La.; the latter being the true destination of the machinery. The machinery was duly forwarded on appellant’s line from Mound Bayou, by way of Vicksburg, at which place the appellant company connected with the Vicksburg, Shreveport & Pacific Bail-way, and there delivered the machinery to the connecting carrier, which was transported by it to Delhi, La. In due course of time the machinery reached Delhi, and remained there for about three weeks, unclaimed and uncalled for. Christmas waited about thirty days, and, not receiving the machinery, began to make inquiry for it, and went to Mound Bayou personally to investigate. He was informed by the agent at Mound Bayou that there must have been some mistake in the hilling over the Vicksburg, Shreveport & Pacific Bailway, and that he (the agent) would send out a tracer after it. The agent did this, and in a fetv days located the machinery at Delhi, La., and gave orders to have same shipped back to Delta Point, on the line of the Vicksburg, Shereveport & Pacific Bailway. The machinery reached Delta Point, finally, about the 20th or 21st day of September, and the company notified Christmas that it had received the freight and that the same was held subject to his order; the charges being $50.70. When Christmas shipped the machinery from Mound Bayou the agent there had agreed that the charges to Delta Point should be $33.1.5; but the Vicksburg, Shreveport & Pacific Bailway, the connecting carrier, added to these charges the transportation charges for carrying the machinery to Delhi and then back again to Delta Point; the additional charges aggregating $17.55. After Christmas received the notice that the machinery was at Delta Point, he took his team and went after it, and offered the agent at Delta Point the sum of $33.15, the charges that had been agreed upon by him with the agent at Mound Bayou. The agent at Delta Point refused to accept this sum, and demanded *697the full stun of $50.70, which Christmas refused to pay, whereupon he began efforts to get the machinery without paying the additional charges, leaving it in possession of the Vicksburg, Shreveport & Pacific Railway Company at its proper destination, from about the 24th of September to the 15th of October, on which latter day, the matter having been adjusted, the agent at Delta Point accepted the original charge and delivered the machinery to Christmas. Christmas made several trips to Delta Point and to Vicksburg to see about having the charges reduced, and wras told by the agent at Vicksburg to pay the charges and that he would see that the excess freight was returned to him, but that he would have to telegraph to New Orleans to get this permission. Christmas declined to pay the extra charges, and continued his efforts to get the machinery. He claims to have incurred considerable expense in his efforts to do this.

The evidence shows conclusively that there was no wilfulness or oppression on the part of the appellant company, but the mistake which occurred was one of pure inadvertence. This being the case, the measure of damages was the value of the use of the machinery for the time which it was detained. Appellee was not entitled to recover for the time lost and expense incurred by him in going to and from Mound Bayou, and to Vicksburg and other places, in 'an effort to have the railroad company reduce the extra charge of $17.55, or in trying to locate the machinery after he gave the first notice to the carrier of its non-receipt by him; but the full measure of his damage was compensation for the time he was deprived of the use of the machinery by reason of the delay of the railroad company, and any necessary expense incurred in informing the carrier of its non-receipt. "Were there no error in the instructions, there is no theory upon which the verdict for $600 could be allowed to stand in this case, when viewed in the light of appellee’s testimony. It is shown by his own testimony that he could have obtained this machinery, about the 24th of September, on the *698payment of the extra charge of $17.55, and that he permitted this machinery to remain with the railway company until the 15th of October simply because he declined to pay the extra charge. He was bound to do all he could to reduce his damage, and if he had paid the $17.55 he would have reduced that damage to the extent of the value of the use of the machinery from the 24th of September to the 15th of October, and also reduced it by such expense as he incurred in going back and forth to Vicksburg and Delta Point. It is shown by plaintiff’s own testimony that -the value of the use of the machinery to him was $10 per day, and that it took about five days in the ordinary course for the machinery to be shipped from Mound Bayou to Delta Point. He'was-notified on the 24th of September that the machinery was at its proper destination. Therefore, according to his own testimony, he was out of the machinery about thirty days, the usable value of which was $10 per day, or $300 in gross, yet the jury awarded as damages $600.

It was error in the court to give the second, fifth, and third instructions for appellee. The second instruction tells the jury that if they believed from the evidence that the gin stand and other machinery delivered to the defendant company at Mound Bayou, for shipment to Delta Point, was by the negligence of the company unreasonably delayed in its transportation and delivery, the jury shall find for plaintiff and assess damages. This is an imperative instruction to the jury to assess damages if they believed the shipment was unreasonably delayed, without any qualification or direction to them as to the rule by which they shall be governed in so doing. It does not tell them what damages they are warranted in assessing, nor does it tell than that they shall only assess such damage as the evidence may show appellee has suffered. This we think was error.

The fifth instruction tells the jury that they are warranted in assessing punitive damages. There is absolutely no testimony in this case which would Warrant the jury in awarding punitive damages. There was no wilfulness, or oppression, or wanton *699disregard of appellee’s rights. There was nothing except a simple mistake, without design, and the measure of appellee’s damage was such sum as it took to compensate him for the use of the machinery 'during the time of its delay. Express Co. v. Jennings, 86 Miss., 329 (s.c., 38 South. Rep., 374) ; Illinois, etc., Railroad Co. v. Brookhaven Machine Co., 71 Miss., 663 (s.c., 16 South. Rep., 252) ; Silver v. Kent, 60 Miss., 129; Railroad Co. v. Ragsdale, 46 Miss., 458; Railroad Co. v. Gilbert, (Tex. Civ. App.), 22 S. W., 760.

We also think, on the facts in this case, the third instruction was erroneous. By it the jury was told that Christmas was not bound to pay the overcharge in freight demanded of him, but that he had the right to demand and receive his property at Delta Point upon the payment of the proper freight rate from Mound Bayou to Delta Point. This is a correct announcement of the law as an abstract proposition, but it is erroneous when applied to the purposes of this suit. Appellee was not bound to pay the overcharge in order to get his machinery, if the machinery alone was the' thing sued for; but he is bound to pay the overcharge and take out his machinery under the circumstances presented by this record, when he brings suit for damages for the unreasonable delay of the machinery, and undertakes to make the appellant company pay him for the time he is kept out of its use.

Reversed and remanded.